Citation Nr: 0014305
Decision Date: 05/31/00 Archive Date: 06/05/00
DOCKET NO. 99-03 912 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Medical and Regional Office
Center in Wichita, Kansas
THE ISSUE
Entitlement to a compensable evaluation for atrophy of the
left testicle, to include entitlement to special monthly
compensation.
REPRESENTATION
Appellant represented by: Veterans of Foreign Wars of
the United States
ATTORNEY FOR THE BOARD
Jason R. Davitian, Associate Counsel
INTRODUCTION
The veteran served on active duty from August 1942 to August
1945.
This case is before the Board of Veterans' Appeals (BVA or
Board) on appeal from an April 1998 rating decision of the
Department of Veterans Affairs (VA) Regional Office and
Medical Center in Wichita, Kansas (RO) which implemented an
April 1998 Board decision which granted service connection
for atrophy of the left testicle under 38 U.S.C.A. § 1151.
The rating decision on appeal assigned a noncompensable
evaluation for the atrophy of the left testicle, effective
from August 16, 1994.
FINDINGS OF FACT
1. All relevant evidence necessary for an equitable
disposition of the veteran's appeal has been obtained by the
RO.
2. The veteran's left testicle is atrophied to the point of
absence.
CONCLUSION OF LAW
The criteria for the award of special monthly compensation
based upon loss of use of a creative organ have been met. 38
U.S.C.A. §§ 1114(k), 5107 (West 1991); 38 C.F.R. § 3.350
(1999).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
The veteran essentially contends that the RO was incorrect in
not granting the benefit sought on appeal. The veteran
maintains, in substance, that the current evaluation assigned
for his left testicle atrophy does not adequately reflect the
severity of that disability. He contends that he merits
special monthly compensation. Therefore, a favorable
determination has been requested.
Regarding this claim, the Board notes that when the veteran
initiated his appeal of this issue, he was appealing the
original assignment of disability evaluation following an
award of service connection. As such, this claim is well-
grounded. 38 U.S.C.A. § 5107(a); Shipwash v. Brown, 8 Vet.
App. 218, 224 (1995). Moreover, the severity of this
disability is to be considered during the entire period from
the initial assignment of a disability rating to the present
time. See Fenderson v. West, 12 Vet. App. 119(1999).
The Board is satisfied that all relevant evidence has been
obtained with respect to
this claim and that no further assistance to the veteran is
required in order to comply with the duty to assist mandated
by statute.
In accordance with 38 C.F.R. §§ 4.1, 4.2 and Schafrath v.
Derwinski, 1 Vet. App. 589 (1991), the Board has reviewed the
service medical records and all other evidence of record
pertaining to the history of the veteran's service-connected
disability. The Board has found nothing in the historical
record that would lead to a conclusion that the current
evidence of record is not adequate for rating purposes.
Moreover, the Board is of the opinion that this case presents
no evidentiary considerations that would warrant an
exposition of the remote clinical histories and findings
pertaining to the disability at issue.
Disability ratings are determined by applying the criteria
set forth in the VA Schedule for Rating Disabilities (Rating
Schedule) found in 38 C.F.R. Part 4 (1999). The Board
attempts to determine the extent to which the veteran's
service-connected disability adversely affects his ability to
function under the ordinary conditions of daily life, and the
assigned rating is based, as far as practicable, upon the
average impairment of earning capacity in civil occupations.
38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.10.
Under the Rating Schedule, complete atrophy of one testis
warrants a noncompensable evaluation. Similarly, removal of
one testis warrants a noncompensable evaluation. 38 C.F.R.
§ 4.115b, Diagnostic Codes 7523 and 7524 (1999).
According to 38 U.S.C.A. § 1114(k), special monthly
compensation is payable for anatomical loss or loss of use of
one or more creative organs. This special compensation is
payable in addition to the basic rate of compensation
otherwise payable on the basis of degree of disability.
Loss of a creative organ will be shown by acquired absence of
one or both testicles (other than undescended testicles) or
ovaries or other creative organ. Loss of use of one testicle
may be established several ways, including when examination
by a board finds that the diameters of the affected testicle
are reduced to one-third of the corresponding diameters of
the paired normal testicle. 38 C.F.R. § 3.350(a)(1)(i)(a).
Loss or loss of use of a creative organ traceable to an
elective operation performed subsequent to service will not
establish entitlement to the benefit. When the existence of
disability is established meeting the above requirements for
nonfunctioning testicle due to operation after service,
resulting in loss of use, the benefit may be granted even
though the operation is one of election. An operation is not
considered to be one of election where it is advised on sound
medical judgment for the relief of a pathological condition
or to prevent possible future pathological consequences.
38 C.F.R. § 3.350(a)(1)(iii).
In assessing the degree of disability attributable to a
service-connected disorder, the disorder is viewed in
relation to its whole history. 38 C.F.R. §§ 4.1, 4.2;
Schafrath 1 Vet. App. 589. Historically, the veteran was
granted service connection for atrophy of the left testicle
by an April 1998 Board decision. The rating decision on
appeal assigned a noncompensable evaluation for the atrophy
of the left testicle, effective August 1994, the date of the
veteran's claim. The noncompensable evaluation was based on
medical evidence showing that only the veteran's left
testicle was atrophied.
Based on a thorough review of the evidence, the Board finds
that there is no evidence that the veteran's right testicle
is atrophied. Accordingly, a compensable evaluation under
Diagnostic Codes 7523 and 7524 is denied.
Based on a thorough review of the evidence, the Board finds
that the veteran is entitled to special monthly compensation.
According to a February 1997 private medical opinion from the
veteran's treating physician, which is the most recent
medical evidence of record, the veteran's left testicle was
atrophied to the extent that the physician had "noted the
absence of his left testicle." The physician additionally
stated that the purpose of the opinion was to "confirm that
the veteran does have absence of his left testicle." The
Board finds that this private medical opinion constitutes
evidence that the diameters of the veteran's left testicle
are reduced to at least one-third of the corresponding
diameters of the paired normal testicle. 38 C.F.R.
§ 3.350(a)(1)(i)(a). In light of this medical opinion, the
Board concludes that an additional examination by a board
regarding the degree of atrophy of the veteran's left
testicle is not necessary.
In addition, the evidence of record, including an April 1998
Board decision, reflects that the veteran's left testicle
atrophy was incurred during an October 1988 VA surgical
procedure to treat a left recurrent inguinal hernia. The
Board finds that this surgery was not elective, since it was
for the relief of a pathological condition. Regardless,
since the existence of disability meeting the requirements
for a nonfunctioning testicle has been established, as set
forth at 38 C.F.R. § 3.50(a)(1)(i)(a), special monthly
compensation may be granted even though the disability is
traceable to surgery that occurred after service, whether
elective or not. 38 C.F.R. § 3.350(a)(1)(iii).
In light of the above, the Board finds that special monthly
compensation for atrophy of the left testicle is warranted.
ORDER
Special monthly compensation for atrophy of the left testicle
is granted, subject to the applicable laws and regulations
governing the award of monetary benefits.
U. R. POWELL
Member, Board of Veterans' Appeals